HF 1831

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 02/08/2012 01:23pm

A bill for an act
relating to state government; providing for legislative review of certain rules;
providing for sunset and legislative approval of existing rules; proposing coding
for new law as Minnesota Statutes, chapter 14A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [14A.01] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Applicability. new text end

new text begin The definitions in this section apply to this chapter.
new text end

new text begin Subd. 2. new text end

new text begin Agency. new text end

new text begin "Agency" means an agency as the term is defined in section
14.02, except that it does not include agencies directly within the legislative or judicial
branches, the Department of Military Affairs, the Office of Administrative Hearings, or
the Tax Court.
new text end

new text begin Subd. 3. new text end

new text begin Rule. new text end

new text begin "Rule" means a rule as the term is defined in section 14.02, except
that the term does not include:
new text end

new text begin (1) a rule pertaining solely to internal agency organization, procedure, or practice that
does not directly or substantially affect the rights or obligations of nonagency parties; or
new text end

new text begin (2) a rule promulgated or otherwise decreed pursuant to the emergency powers in
sections 12.31 to 12.37.
new text end

new text begin Subd. 4. new text end

new text begin Major rule. new text end

new text begin "Major rule" means a rule that the agency promulgating the
rule, after consulting with the commissioner of employment and economic development,
finds has resulted in or is likely to result in:
new text end

new text begin (1) an adverse effect or impact on the private-sector economy of the state of
Minnesota of $2,000,000 or more in a single year;
new text end

new text begin (2) a significant increase in costs or prices for consumers, individual private-sector
industries, state agencies, local governments, individuals, or private-sector enterprises
within certain geographic regions inside the state of Minnesota; or
new text end

new text begin (3) significant adverse impacts on the competitiveness of private-sector
Minnesota-based enterprises, or on private-sector employment, investment, productivity,
or innovation within the state of Minnesota.
new text end

new text begin Subd. 5. new text end

new text begin Nonmajor rule. new text end

new text begin "Nonmajor rule" means a rule that is not a major rule.
new text end

Sec. 2.

new text begin [14A.02] LEGISLATIVE REVIEW.
new text end

new text begin Subdivision 1. new text end

new text begin Report to legislature before rule takes effect. new text end

new text begin Before a rule may
take effect and have the force of law, the agency promulgating the rule shall prepare and
submit to the speaker of the house, president of the senate, and the chairs of the respective
house and senate standing committees with jurisdiction, a report containing:
new text end

new text begin (1) a copy of the rule;
new text end

new text begin (2) a concise, general statement summarizing the rule;
new text end

new text begin (3) a classification of the rule as a major or nonmajor rule, including an explanation
of the classification specifically addressing each criteria for a major rule contained within
section 14A.01, subdivision 4, clauses (1), (2) and (3); and
new text end

new text begin (4) a list of any other related regulatory actions intended to implement the same
statutory provision or regulatory objective as well as the individual and aggregate
economic effects of those actions.
new text end

new text begin Subd. 2. new text end

new text begin Information to be made available. new text end

new text begin (a) The report pursuant to subdivision
1 submitted by the agency promulgating the rule shall be prepared by the agency, which
shall employ reasonable efforts to prepare the report, with the cooperation and assistance
of the commissioner of employment and economic development as needed to classify
the rule pursuant to subdivision 1, clause (3). The classification of the rule required by
subdivision 1, clause (3), shall be made based upon and considering all items identified in
paragraph (b) that are relevant to making the classification.
new text end

new text begin (b) The agency promulgating the rule must make available to the commissioner of
employment and economic development in connection with the preparation of the report
required by subdivision 1, and make available to both houses of the legislature on the date
of the submission of the report for inspection or review upon the request of any member of
either house of the legislature, the following:
new text end

new text begin (1) any cost-benefit analysis of the rule, any analysis of private-sector jobs added
or lost, and any analysis of the economic or employment impacts of the rule, actual
or anticipated, and any information, document, analysis, or report relevant to the
determination required to be made under subdivision 1, clause (3), that are within the
possession, custody, or control of the agency, or which the agency knows to exist and is
able to obtain without undue or disproportionate burden or expense;
new text end

new text begin (2) any statements of need and reasonableness prepared pursuant to section 14.131
or 14.23 regarding the rule or any previously proposed version of the rule;
new text end

new text begin (3) any relevant written comments received by the agency regarding the rule or any
previously proposed version of the rule;
new text end

new text begin (4) any transcript of any hearing related to the rule or any previously proposed
version of the rule that was prepared pursuant to a request under section 14.14, subdivision
3;
new text end

new text begin (5) any findings, conclusions, orders, approvals, disapprovals, opinions, or reports
issued by an administrative law judge in any way related to the rule or previously proposed
versions of the rule, including any report prepared by an administrative law judge under
section 14.15;
new text end

new text begin (6) any relevant advice and comment submitted to the agency pursuant to section
14.15, subdivision 4, or 14.26, subdivision 3;
new text end

new text begin (7) any opinions or orders issued by any federal or state court in any appeal of
or other civil action challenging, in whole or in part, any administrative law judge's
report under section 14.15 or any findings, conclusions, orders, approvals, disapprovals,
opinions, or reports issued by any administrative law judge regarding the rule or any
previously proposed version of the rule;
new text end

new text begin (8) any agency determinations regarding the rule under section 14.127, subdivisions
1 and 2, and any documents or other information relied upon by the agency in making
such determination;
new text end

new text begin (9) any approvals or disapprovals issued by an administrative law judge pursuant to
section 14.127, subdivision 2, of any determination made by the agency under that section;
new text end

new text begin (10) any written statements filed with the agency under section 14.127, subdivision
2, that relate to the rule;
new text end

new text begin (11) any other relevant information or requirements under any other act;
new text end

new text begin (12) any relevant executive orders; and
new text end

new text begin (13) any other information, documents, data, or analyses relied upon in order to
make the determination required under subdivision 1, clause (3).
new text end

new text begin Subd. 3. new text end

new text begin Classification of nonmajor rule; notice. new text end

new text begin On the date that the report
under subdivision 1 is submitted with regard to a rule that the agency promulgating the
rule has classified as a nonmajor rule, the agency promulgating the rule shall publish a
notice identifying the rule as a nonmajor rule and setting forth in full the explanation of
the classification that subdivision 1, clause (3), requires the agency to include in its report
under subdivision 1.
new text end

new text begin Subd. 4. new text end

new text begin Joint resolution of approval required for major rule. new text end

new text begin (a) A major
rule shall not take effect or have the force of law unless a joint resolution of approval as
described under section 14A.03 is enacted into law.
new text end

new text begin (b) If a joint resolution of approval is not enacted within 20 legislative days,
beginning on the legislative day on which the report referred to in subdivision 1 is received
by the legislature, then the rule described in that resolution is not approved and does
not take effect and does not have the force of law, and a subsequent joint resolution of
approval relating to the same rule may not be considered under this chapter in the same
biennial session of the legislature by either the house of representatives or the senate. If a
report under subdivision 1 is received by the office of the speaker of the house and the
office of the president of the senate on a day that is not a legislative day, then the 20-day
period begins on the first subsequent legislative day after receipt of the report, except
as provided under subdivision 6.
new text end

new text begin (c) If a joint resolution of approval is not enacted in the time period specified in
paragraph (b), the agency that has proposed the rule shall forthwith publish a notice in
the State Register stating that the rule has not been approved by the legislature, is not
effective, does not have the force of law, and is not to be considered an adopted rule.
However, if the governor makes a determination and issues an executive order under
subdivision 5, the agency shall delay publication of the State Register notice until the
day following the end of the period of time described in the executive order pursuant
to subdivision 5, paragraph (a).
new text end

new text begin Subd. 5. new text end

new text begin Major rule taking effect under executive order. new text end

new text begin (a) Notwithstanding
any other provision of this section, but subject to paragraph (c), if the governor makes
a determination under paragraph (b) and submits written notice of this determination
to the speaker of the house, the president of the senate, and the chairs of the standing
committees with jurisdiction, a major rule may take effect and have the force of law
for one 90-calendar-day period, or, in the event that a report relating to a major rule
classified as such under subdivision 1, clause (3), is submitted to the legislature after the
legislature has adjourned a regular annual session and before the legislature has convened
its next regular annual session, for one period of time not to exceed that period of time
commencing with the date of the submission of such report as required by subdivision 1
and ending with the earlier of (1) the 20th legislative day of the next regular annual session
of the legislature or (2) the final legislative day of the next regular annual session of the
legislature. An executive order issued pursuant to paragraph (b) shall state the time period
of its effectiveness, as that time period is described in this paragraph.
new text end

new text begin (b) Paragraph (a) applies to a determination made by the governor by executive
order that the major rule should take effect because the rule is:
new text end

new text begin (1) necessary because of an imminent threat to public health, safety, security, or
other emergency; or
new text end

new text begin (2) necessary for the enforcement of criminal laws.
new text end

new text begin (c) An exercise by the governor of the authority under this subdivision has no effect
on the procedures under this section or section 14A.03.
new text end

new text begin Subd. 6. new text end

new text begin Approval of rules reported late in legislative sessions. new text end

new text begin (a) In addition
to the opportunity for review otherwise provided under this chapter, in the case of any
rule for which a report was submitted in accordance with subdivision 1 during the period
beginning on the date occurring 45 calendar days before the date the legislature is
scheduled to adjourn a regular annual session of the legislature through the date on which
the same or succeeding legislature first convenes its next regular annual session, section
14A.03 shall apply to such rule in the succeeding session of the legislature.
new text end

new text begin (b) In applying section 14A.03 for purposes of such additional review, a rule
described under paragraph (a) shall be treated as if the report on such rule were submitted
to the legislature under subdivision 1 on the fifth legislative day of the session.
new text end

new text begin (c) Nothing in this subdivision shall be construed to affect the requirement under
subdivision 1 that a report shall be submitted to the legislature before a rule can take
effect and have legal force.
new text end

new text begin (d) A rule described under paragraph (a) shall take effect as otherwise provided by
law, including other subdivisions of this section and section 14A.03.
new text end

Sec. 3.

new text begin [14A.03] LEGISLATIVE APPROVAL FOR MAJOR RULES.
new text end

new text begin Subdivision 1. new text end

new text begin Introduction of resolution. new text end

new text begin (a) For purposes of this subdivision, the
term "joint resolution" means only a joint resolution addressing a report classifying a rule
as major pursuant to section 14A.02, subdivision 1, clause (3), that:
new text end

new text begin (1) bears no preamble;
new text end

new text begin (2) bears the following title (with blanks filled as appropriate): "Approving the
rule submitted by ....... relating to ......";
new text end

new text begin (3) includes after its resolving clause only the following (with blanks filled as
appropriate): "That the legislature approves the rule submitted by ....... relating to .......";
and
new text end

new text begin (4) is introduced pursuant to paragraph (b).
new text end

new text begin (b) After a house of the legislature receives a report classifying a rule as major
pursuant to section 14A.02, subdivision 1, clause (3), the majority leader of that house or
respective designee shall introduce a joint resolution described in paragraph (a) within
three legislative days.
new text end

new text begin (c) A joint resolution described in paragraph (a) shall not be subject to amendment at
any stage of proceeding.
new text end

new text begin Subd. 2. new text end

new text begin Legislative procedure for consideration. new text end

new text begin (a) A joint resolution described
in subdivision 1 shall be referred in each house of the legislature to the committees having
jurisdiction over the provision of law under which the rule is issued.
new text end

new text begin (b) In the house and senate, respectively, if the committee or committees to which a
joint resolution described in subdivision 1 has been referred have not reported it back to
the main body at the end of six legislative days after its introduction, such committee or
committees shall be automatically discharged from further consideration of the resolution,
and it shall be reported back to the main body, where it shall receive its second reading
on the next legislative day, the seventh legislative day following its introduction. If the
committee or committees to which such a joint resolution has been referred report it back to
the main body before the end of the sixth legislative day following its introduction, it shall
receive its second reading on the next legislative day no later than the seventh legislative
day following its introduction. Immediately after receiving its second reading, the joint
resolution shall be immediately placed on the appropriate calendar for consideration by
the full house or senate. The joint resolution shall receive its third reading, be taken up for
consideration, and a vote on final passage of the joint resolution shall be taken on or before
the close of the ninth legislative day after the joint resolution receives its second reading.
new text end

new text begin (c) At any time after a joint resolution as described in subdivision 1 has received its
second reading in either the house of representatives or the senate, and has been placed on
the appropriate calendar for consideration by that body:
new text end

new text begin (1) in the house of representatives, it shall be in order for the speaker to recognize
a member who favors passage of a joint resolution to call up that joint resolution for
immediate consideration in the house without intervention of any point of order or
procedure or procedural motion; and
new text end

new text begin (2) in the senate, it shall be in order for any senator who favors passage of a joint
resolution to move the immediate consideration of the same without intervention of any
point of order or procedure or procedural motion.
new text end

new text begin (d) If, before passing a joint resolution described in subdivision 1, one house of the
legislature receives from the other a joint resolution having the same text, then:
new text end

new text begin (1) the joint resolution of the other house shall not be referred to a committee; and
new text end

new text begin (2) the procedure in the receiving house shall be the same as if no joint resolution
had been received from the other house until the vote on passage, when the joint resolution
received from the other house shall supplant the joint resolution of the receiving house.
This paragraph does not apply to the house of representatives if the joint resolution
received from the senate is a revenue measure.
new text end

new text begin (e) If either house of the legislature has not taken a vote on final passage of the
joint resolution by the last day of the period described in section 14A.02, subdivision 4,
paragraph (b), then such vote shall be taken on that legislative day.
new text end

new text begin (f) A joint resolution that is passed in identical form in the house and the senate shall
be enrolled and presented to the governor in the manner provided for bills.
new text end

Sec. 4.

new text begin [14A.04] JUDICIAL REVIEW.
new text end

new text begin Subdivision 1. new text end

new text begin No judicial review. new text end

new text begin No determination, finding, action, or omission
under this chapter is subject to judicial review.
new text end

new text begin Subd. 2. new text end

new text begin Exceptions. new text end

new text begin Notwithstanding subdivision 1:
new text end

new text begin (1) a court may determine whether an agency has completed the necessary procedural
requirements under this chapter for a rule to take effect and have legal force; and
new text end

new text begin (2) upon a petition by any person as described in this clause within 60 days
after publication in the State Register of a notice that an agency has classified a rule
as a nonmajor rule, the Office of Administrative Hearings may review the agency's
classification of such rule as a nonmajor rule. If the administrative law judge concludes
that the agency's classification of a rule as a nonmajor rule was arbitrary, capricious,
made in bad faith, or not based upon substantial evidence, the administrative law judge
may order relief limited to invalidating all or a severable portion of such rule which was
improperly classified as nonmajor. In the event the administrative law judge orders such
relief, the invalidated rule or invalidated severable portion of the rule shall be deemed, for
purposes of section 14A.02, subdivision 3, paragraph (d), only, to have been classified
as a major rule for which a joint resolution of approval was not timely enacted. Any
person shall have standing to seek relief under this paragraph as hereinafter described.
For purposes of determining a person's standing to seek relief under this clause, the
administrative law judge shall assume that, had the rule at issue been classified as a major
rule, such rule would have failed to be timely approved by a joint resolution under section
14A.03. For purposes of this clause, the term "person" does not include any state or
federal agency or official in their official capacity, state or federal agency within the
legislative or judicial branches of the state or federal government, municipal corporation,
city, township, other unit of local government, or local government agency. The order
of an administrative law judge under this clause shall be considered a final decision in a
contested case for purposes of judicial review pursuant to sections 14.63 to 14.68.
new text end

new text begin Subd. 3. new text end

new text begin Effect of joint resolution. new text end

new text begin The adoption of a joint resolution of approval
under section 14A.03 shall not be interpreted to serve as a grant or modification of
statutory authority by the legislature for the promulgation of a rule, shall not extinguish or
affect any claim, whether substantive or procedural, against any alleged defect in a rule,
and shall not form part of the record before the court in any judicial proceeding concerning
a rule except for purposes of determining whether or not the rule is in effect.
new text end

Sec. 5.

new text begin [14A.05] SUNSET, SUNSET REVIEW, AND LEGISLATIVE
REAPPROVAL OF MAJOR RULES.
new text end

new text begin Subdivision 1. new text end

new text begin Expiration of major rules. new text end

new text begin Except as provided in this section, all
rules classified as major rules pursuant to section 14A.02 and approved according to a
joint resolution of approval pursuant to section 14A.03 shall remain in force and effect
for no longer than two years from the date a joint resolution of approval for each major
rule is enacted. Each such major rule shall expire and become of no force or effect at the
end of the 730th day after the date the joint resolution of approval of such major rule was
enacted unless, before such time, but in no event earlier than 180 days before the major
rule at issue will automatically sunset and expire pursuant to this section, the agency that
promulgated the rule, or to which jurisdiction over the rule has been transferred:
new text end

new text begin (1) submits a report in the form and manner prescribed by section 14A.02,
subdivision 1, that classifies the rule as a nonmajor rule; or
new text end

new text begin (2) submits a report in the form and manner prescribed by section 14A.02,
subdivision 1, that classifies the rule as a major rule, and a joint resolution of approval is
subsequently and timely enacted pursuant to section 14A.03.
new text end

new text begin Subd. 2. new text end

new text begin Required analysis. new text end

new text begin For purposes of this section, the agency issuing the
report to the legislature under section 14A.02, subdivision 1, shall, for the purposes of
classifying the rule as major or nonmajor according to the criteria set forth in section
14A.01, subdivision 3, analyze:
new text end

new text begin (1) whether the rule did in fact result in the any of the impacts or effects identified in
each such criterion during the time period commencing when the major rule at issue went
into effect to the time of the preparation of the report being submitted; and
new text end

new text begin (2) whether the rule will likely result in any of the impacts or affects identified in
each such criterion during the period commencing with the date the rule would otherwise
sunset and expire pursuant to subdivision 1 and ending two years after that date.
new text end

new text begin Subd. 3. new text end

new text begin Provisions applicable to prevent rules from expiring. new text end

new text begin Except as
expressly stated in this section, all of the provisions of this chapter apply to any reports
submitted to the legislature pursuant to this section and to any joint resolutions of approval
that may be introduced or enacted to prevent a major rule from sunsetting and expiring
according to the provisions of this section, as if the rules for which such reports and joint
resolutions of approval are submitted, introduced, enacted, or otherwise acted upon are
original rules being promulgated for the first time.
new text end

new text begin Subd. 4. new text end

new text begin Expiration and sunset. new text end

new text begin All major rules that do not sunset and expire
because they are reapproved by a joint resolution of approval pursuant subdivision 1
shall likewise expire and sunset according to the provisions of subdivision 1, except as
otherwise provided in this section.
new text end

Sec. 6.

new text begin [14A.06] SUNSET AND LEGISLATIVE APPROVAL OF EXISTING
RULES.
new text end

new text begin Subdivision 1. new text end

new text begin Rules deemed major rules unless otherwise reported. new text end

new text begin All rules
in effect on the effective date of this section shall be deemed major rules unless a report
pursuant to section 14A.02, subdivision 1, classifying a rule as a nonmajor rule is
submitted as required by section 14A.02, subdivision 1, by the agency that promulgated
the rule (or which currently has jurisdiction over the rule), and the agency publishes the
notice required by section 14A.02, subdivision 3, in the State Register within 180 days
after the enactment of this act.
new text end

new text begin Subd. 2. new text end

new text begin Rules currently in effect. new text end

new text begin All rules in effect on the effective date of this
section that are not determined to be nonmajor rules pursuant to subdivision 1 shall be
deemed to be major rules and, for purposes of section 14A.05, shall be deemed to have
been approved by joint resolutions of approval as described in this chapter as of the date
that is 180 days following the enactment of this act.
new text end

Sec. 7. new text begin TITLE AND PURPOSE.
new text end

new text begin Subdivision 1. new text end

new text begin Citation. new text end

new text begin This act may be cited as "The Responsible Rulemaking
and Accountable Representation Act" or the "RRAR Act."
new text end

new text begin Subd. 2. new text end

new text begin Purpose. new text end

new text begin Over the course of several decades, the reach of the law has been
extended over an increasingly wide range of subjects, to the point that very few aspects of
an individual's life are not now touched in one way or another by the long arm of the state.
As the scope and size of the state has expanded, the separation of powers guaranteed by
the Minnesota Constitution, article III, has necessarily decayed. Over time, the legislature
has delegated more and more of its legislative power to executive branch agencies which
enact rules that have the force of law with little or no input or oversight from the people's
elected representatives. By requiring a vote in the legislature, the RARR Act will result in
narrower, more carefully drafted laws and rules. By clearing away unduly burdensome
regulatory requirements, the RARR Act will unleash the power of free enterprise and
promote private sector job creation. And by reining in excessive delegation of legislative
authority to unelected civil servants, the RARR Act will make the legislature accountable
to the people of Minnesota for the laws imposed on them.
new text end